Opinion
19-P-1758
05-18-2021
MACY'S RETAIL HOLDINGS, INC. v. BOARD OF ASSESSORS OF BURLINGTON.
MEMORANDUM AND ORDER PURSUANT TO RULE 23.0
The board of assessors of Burlington (assessors) appeals from a decision of the Appellate Tax Board (board), granting real estate tax abatements to Macy's Retail Holdings, Inc. (taxpayer) for fiscal years 2014, 2015, and 2016. The assessors argue that the board erred in rejecting the assessors’ expert's opinion on the value of the subject property and in failing to include the potential for further development of "pad sites" on the property in determining its fair cash value. We disagree and therefore affirm.
Background. We briefly summarize the unchallenged facts found by the board, supplementing with undisputed facts from the record. The taxpayer's property adjoins the Burlington Mall, comprises a parcel of approximately seventeen acres, and is improved with a three-story department store. The property also includes a parking area with approximately 1,515 parking spaces. The assessors, on behalf of the town of Burlington (town), assessed annual taxes on the property; the taxpayer made timely requests for abatement of the taxes assessed for fiscal years 2014, 2015, and 2016. When those requests proved unsuccessful, the taxpayer sought relief from the board.
At an evidentiary hearing before a commissioner of the board, the parties each presented expert opinion testimony on the property's value. The taxpayer's expert, Donald P. Bouchard, testified that the property's highest and best use was as a department store; he provided a value for each of the contested years based on that opinion. The assessors’ expert, Emmet T. Logue, opined that the highest and best use of the property was as a department store with the development of one or more "pad sites," or additional retail development locations, in the area being used for parking. The board concluded that the property's highest and best use was a retail anchor store, without development of any portion of the pad sites. Making its own determination of the property's fair cash values for the fiscal years at issue, and finding that "the appellant [taxpayer] sustained its burden of proving that the assessed value of the subject property exceeded its fair cash value for each of the fiscal years at issue," the board granted the taxpayer's requests for abatements.
The taxpayer had, at one time, proposed such development to the town, but had not pursued the proposal.
We are not persuaded that the board shifted the burden of proof from the taxpayer to the assessors.
Discussion. In considering the taxpayer's appeal of the assessed tax, the board was required to determine the fair market value of the property or, in other words, "the highest price that a hypothetical arm's-length willing buyer would pay to a hypothetical willing seller in a free and open market, based on the highest and best use of the property," including "potential uses ... that a reasonable buyer would consider significant in deciding how much to pay." Rodman v. Commonwealth, 86 Mass. App. Ct. 500, 504 (2014), quoting Boston Edison Co. v. Massachusetts Water Resources Auth., 459 Mass. 724, 731 (2011) (defining "fair market value" in context of eminent domain). Our standard of review is deferential to the board -- we do not disturb the board's decision "if it is based on substantial evidence and a correct application of the law." Boston Gas Co. v. Assessors of Boston, 458 Mass. 715, 721 (2011). "Substantial evidence is ‘such evidence as a reasonable mind might accept as adequate to support a conclusion.’ " Id., quoting Tennessee Gas Pipeline Co. v. Assessors of Agawam, 428 Mass. 261, 262 (1998).
The focal point of this appeal is the difference between the parties’ experts’ treatment of the potential for development of up to three "pad sites" on the property. The taxpayer's expert, Bouchard, testified that development would require the approval of both the town and the mall's owner, Simon Properties, and that based on his conversation with "folks at Simon," the owner's approval was unlikely to be forthcoming. Accordingly, the taxpayer's assessment of the property's value did not take into account the value of future development of any of the pad sites. The assessors’ expert, Logue, conceded that it was likely that any pad site could be developed only if the owner of the adjacent mall agreed, but opined that the owner would likely provide the required consent, and so did add an estimate of the corresponding value of future pad site expansion.
On appeal, the assessors challenge the admission of Bouchard's account of these conversations as hearsay. Although the assessors’ counsel raised other objections to this testimony during the hearing before the board, the assessors did not object on the basis of hearsay. That objection, accordingly, was waived. See Adoption of Kenneth, 31 Mass. App. Ct. 946, 947 (1991) (general objection insufficient to preserve specific hearsay objection). We are unpersuaded by the assessors’ challenge to Bouchard's opinion on the grounds that it lacked appropriate foundation. See Anthony's Pier Four, Inc. v. HBC Assocs., 411 Mass. 451, 480 (1991), quoting Department of Youth Servs. v. A Juvenile, 398 Mass. 516, 531 (1986) (proponent of expert testimony "not required to ‘produc[e] exhibits and witnesses whose sole function is to construct a proper foundation for the expert's opinion’ ").
The assessors concede as much on appeal.
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It was for the board to assess the weight and credibility of the evidence presented, and we discern no abuse of discretion or other error in the board's assessment of the parties’ evidence here. See General Elec. Co. v. Assessors of Lynn, 393 Mass. 591, 600, 608 (1984), quoting Boston Edison Co. v. Assessors of Watertown, 387 Mass. 298, 302 (1982) (appellate court "defer[s] to the board's judgment as to what evidence to accept and which method or methods of valuation to rely on"); Cummington Sch. of Arts, Inc. v. Assessors of Cummington, 373 Mass. 597, 605 (1977) ("The credibility of witnesses, the weight of the evidence, and inferences to be drawn from the evidence are matters for the board"). The board's determination that the pad site values were "too speculative" was based on the evidence and did not amount to improper burden-shifting. The board was free to credit Bouchard's testimony that the mall owner would not approve the development of business sites which would have the potential to compete with the owner's own plans and, on that basis, to conclude that the taxpayer had "expos[ed] flaws or errors in the assessors’ method of valuation." General Elec. Co., supra at 600, quoting Donlon v. Assessors of Holliston, 389 Mass. 848, 855 (1983). The taxpayer having persuaded the board that the assessors overvalued the property, the board properly went on to determine the property's fair market value and to calculate the tax and resulting abatement. See Foxboro Assocs. v. Assessors of Foxborough, 385 Mass. 679, 684 (1982). We discern no error.
Conclusion. The decision of the Appellate Tax Board is affirmed.
So ordered.
Affirmed